DILBAGH RAI vs HOUSING BOARD, HARYANA

THERE are two revision petitions against the order of the 12th of August, 1993 of the State Commission of Haryana in F.A.S. Nos. 259 and 260 of 1993 on its file. In the original complaint petition before the District Forum Mr. Dilbagh Singh was the complainant and the Housing Board, Haryana was the Opposite Party. They shall be described as complainant and respondent in this order disposing of the revision petitions.

BY its order of 12th August, 1993 the State Commission upheld the under of the District Forum awarding interest at 15% on the amount deposited by the complainant for purchase of for a period of two years from the date of deposit. Other reliefs sought for by the complainant were disallowed.

THE facts of the case briefly are that the complainant applied for the allotment of a HIG flat on the 8th of December, 1986. House No. 1761/HIG-FF was allotted to the complainant. The complainant asked for a change of the flat allotted and he was subsequently House No. 1782A/HIG-FF.

THE Housing Board had undertaken to allot houses with two years of the date of registration. In this case, therefore, the allotment was to be made was by 1988/89. However, the allotment was made on the 28th of August, 1990 long after the stipulated period of two years as per the terms of the scheme of booking. According to the complainant when he took possession of the house on the 9th of October, 1990 there were no visible defects and hence, he had given a certificate to the Housing Board that he was fully satisfied with the civil works, public health works and the electrical services and that the house was complete in all respects. He also agreed to the payment of enhanced cost which was more than what was already advertised/indicated. During the rainy season, after possession had been taken in July/August 1991 rain water started percolating from the ceiling and the walls at different places which led to the building developing cracks. In his complaint he had specified the defects as cracks in the parapet wall and the tiles terracing due to settlement leading to accumulation of water on the roof which percolates, cracks in the flooring of the lining, cracks in the wall supporting the staircase, cracks between the wall of the linter in the bedroom, damage to plaster which had started falling off etc. The complainant attempted to substantiate his case regarding these defects in the building by citing the report (dated 10th September, 1992) of Professor of P.C. structures, Punjab Engineering College. The complainant has averred that this report was obtained by the department itself which got the houses inspected. According to the report, inter alia, in the various HIG houses specified therein including No. 1782 allotted to the complainant "the strengths are below designed. These houses need attention and some strengthening measures should be taken before put to use''''. The report of Professor of P.C. Structures is un-dated.

THE complainant has further suggested that the settlement and cracks in the structural members, and seepage of water are due to the failure of the respondent Housing Board to use materials as per the standards laid down in the P.W.D. Manual of Designs and Specifications and also construction not being done as per the prescribed procedures and designs.

THE complainant has also further cited the report of a team of experts under Shri P.C. Sanghi the then Superintending Engineer, Housing Board, Haryana which, according to him, also revealed that there had been a large number of defects in the construction, such as, defective material, defective technique and rough quality of work. The report of Shri Sanghi however, has not been filed. Another point made by the complainant in the complaint was that he was charged an excessive price for the flat. The advertised cost of the completely built up house was Rs. 1,15/000/- but he was eventually required to pay Rs. 1,94,260/-.

ON the question of the cost he has submitted in his revision petition that truly speaking, the house was a semi-completed house for which a much higher price was charged whereas other allottees of identical houses under the same Scheme were charged only Rs. 1,27,000/-. He had, therefore, made a request before the District Forum for production of tenders and completion report of the houses in question but the District Forum and the State Commission did not pass any order on this request. According to the complainant these documents would have enabled him to establish that the price of the house allotted to him was excessive and that the material used was substandard and not in conformity with the standard materials prescribed by PWD manual. In this connection, he also has pointed out that there was a dispute between the Board and the contractor as a result of which the contractor stopped construction and referred the disputes to an Arbitrator. The Arbitrator found in favour of the contractor where after the Board completed the houses itself. According to the complainant the Board has recovered the amount awarded by the Arbitrator to the contractor and interest thereon from the allottees of the flats. Further that the Opposite Party Housing Board has failed to justify the enhancement in the price of the houses. As regards defective construction including use "of substandard material, the Opposite Party Board has taken the plea that the complainant had accepted at the time of taking possession, that there was no building or constructional defect in the house and had given a certificate of satisfaction in regard to sewerage, public health and electrical works. In its reply to the complaint petition, the Opposite Party Board had explained that the cracks in the house "might have been due to expansion joint between the two houses and that they had provided such joints after every alternative house".

ON the question of the escalated price of the plot the District Forum took the view that "it is certainly not within the province of the District Forum to take cognizance of the dispute, regarding prices of the built-up house raised by the allottee". It had also further noted that the complainant had given an undertaking agreeing to the revised mode of payment and the enhanced cost which was more than that was advertised/intimated." These observations of the District Forum were confirmed by the State Commission. Under the Consumer Protection Act, relief can be sought by a consumer in respect of defective goods or deficiency in services and not in relation to the price charged; excessive consideration would not constitute a deficiency in service. It is a quid pro quo for the service rendered.

HOWEVER , it would have been just and fair for the Board to examine the charge made by the complainant that the amount awarded in arbitration to the contractor and against the Board has also been loaded on to the cost of construction of these houses including the house allotted to the complainant. In its own interest, the Board should have taken the opportunity to disabuse the impression that cost data has been manipulated. However, we cannot do anything more than making an observation that suppliers of goods or services should provide them at a just and fair price to the consumers.

AS regards the defective construction, the District Forum observed that this could not also been taken cognisance as it did not at all fall within the domain of the consumer dispute. The complainant was neither a buyer for consideration of goods as defined in the Sale of Goods Act nor a hirer for consideration of any service as defined in Section 2(1)(d) of the Consumer Protection Act. Surely the failure to perform the terms of agreement in respect of immovable property cannot be called a deficiency in service. Likewise, the purchaser of immovable property cannot be deemed to be a buyer of goods''''. But the legal position has undergone a radical change with the Hon''ble Supreme Court''s judgment in Civil Appeal No; 6237 of 1990 = III (1993) CPJ 7 (S.C.) Lucknow Development Authority v. M.K. Gupta. The Hon''ble Supreme Court has observed that "when a Statutory Authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or a contractor...if the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property..but deficiency in rendering of service of particular standard quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as unfair trade practice". In the light of the observation of Hon''ble Supreme Court, the allotment of a defective louse to the complainant would certainly attract mischief of the Consumer Protection Act.

NOW coming to the question, whether the construction was defective and the material used was substandard, there is conclusive evidence contained in the report of the Professor of P.C. Structures, Punjab Engineering College alluded to above. It had held that the construction of the HIG houses including No. 1782 allotted to the complainant, was below designed. There is also a reference to the report of Shri P.C. Sanghi, the then Superintending Engineer-cum-Enquiry Officer of the Housing Board Haryana, Chandigarh which has not been filed along with the revision petition. However, the statement that Mr. Sanghi in his report had held that there was large number of defects in the construction qua the material, technique and the quality of work as stated in the rejoinder filed by the complainant to the reply of the Opposite Party Housing Board has remained unrepudiated.

THE admission of the Opposite Party Housing Board that cracks in the parapet might have been due to expansion of joints is quite damaging. In this context, the defence of the Opposite party Housing Board that at the time of taking possession the complainant had pointed out no defects in the construction, on the contrary had given the satisfaction certificate regarding sewerage works, public health work, electrical service does not provide immunity to the Housing Board from its liability for defective construction. The allottee of the house is only responsible for noticing what are known as patent defects in construction. The latent defects would show up only in due course of time and especially in the case of buildings after rains. Consequently, the complainant was not estopped from raising the question of defective construction nearly after one year of taking possession.

IT is, therefore, established and that the house constructed was defective.

CONSIDERING that the cracks were quite extensive in the house and the technical reports confirmed that the construction work was below the designed parameters. We have reasons to conclude that the house suffered from serious constructional defects which was bound to aggravate with passage of time being exposed to wind and rain. It is in this connection that the submission made by the complainant in his revision petition assume significance. If suitable iron bars were laid while building the roof the need for expansion joints could be obviated. Again if all the slabs of one flat are laid in single span there would be no possibility of a joint and of expansion therein. It is in this context that the complainant''s request for production of tenders and completion reports and also the disputes with the contractor, which were referred to arbitration assume relevance. However, we cannot go into these matters in revision. But their implications are obvious that there is strong evidence to establish that the construction work was defective and substandard. Therefore, there is merit in the contention of the complainant that he has been given a house which suffers from serious structural defects. There is, therefore, deficiency in service of "housing construction". The complainant is therefore, entitled to all the expenditure that he has incurred or has to incur for removing those defects. He has estimated the same at Rs. 1.92 lacs almost equal to the price of the house. This matter requires to be investigated and such an investigation of facts cannot be conducted in these revisi Jnal proceedings.

THE orders of the State Commission and District Forum are therefore, upheld so far as they have allowed interest on the amount deposited by the complainant purchaser. The revision petition of the complainant is allowed so far as it relates to compensation for defects in construction and the case is remanded to the State (Commission for fresh determination of the limited question as to the quantum of compensation to be awarded to the complainant for the defective nature of the construction necessitating rectification of serious defects. The Revision Petition filed by the Housing Board is dismissed. The Housing Board shall pay a sum of Rs. 2,000/- as costs to the complainant.